UNIQUE AUTO SALES, LLC ET AL.
DUNWODY INSURANCE AGENCY ET AL.
BARNES, P. J., MCMILLIAN and REESE, JJ.
BARNES, PRESIDING JUDGE.
Auto Sales, LLC and its owner/operator Justin Campbell appeal
the summary judgment entered against them and in favor of
Dunwody Insurance Agency and its agent, Thomas McEachern. At
issue is whether the insurance parties can be held liable for
failure to procure certain insurance coverage for Unique Auto
Sales. The trial court answered no to this question. For
reasons explained below, we reverse.
judgment is properly granted "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law[.]" OCGA § 9-11-56 (c). "In our de novo
review of the grant of a motion for summary judgment, we must
view the evidence, and all reasonable inferences drawn
therefrom, in the light most favorable to the
nonmovant." (Citation and punctuation omitted.)
Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697
S.E.2d 779) (2010).
viewed, the record shows the following. Unique Auto Sales is
a wholesaler of used automobiles. It buys used vehicles from
various sources, then shops for business purchasers of those
vehicles, then delivers the vehicles - typically, on a
"consignment" basis - to those purchasers at their
designated locations. With respect to the size of the
enterprise, during 2017, Unique Auto Sales was selling as
many as 600 vehicles per month. Campbell was operating Unique
Auto Sales out of his Georgia residence, but almost none of
the business's vehicles were stored at that location.
about five years, Unique Auto Sales delivered vehicles to
High Line Motors, located in South Carolina and owned by
Michael Alexon. During those years, Unique Auto Sales would
consign vehicles to the South Carolina enterprise and receive
payments after that company executed sales. Then in 2015, the
South Carolina company ceased paying Unique Auto Sales for
vehicles that had been delivered to its designated South
Carolina location. Seven of those vehicles were never
recovered, and Unique Auto Sales calculated a loss of
approximately $230, 000.
recoup its loss, Unique Auto Sales filed a claim with its
insurance company, Utica National Insurance Group. The
insurance company denied the claim. In a letter to Campbell
dated November 18, 2015, Utica National Insurance Group set
out certain policy provisions, including an exclusion that
the insurance company would not pay for:
"Loss" to any covered 'auto' displayed or
stored at any location not shown in Item Three of the
Declarations if the 'loss' occurs more than 45 days
after your use of the location begins.
undisputed that "Item Three of the Declarations"
listed only Campbell's Georgia residence. Hence, as
Appellants Unique Auto Sales and Campbell maintain in their
joint appellate brief, "Utica issued a policy with an
exclusion for autos displayed or stored on premises other
than Unique Auto's listed address, which happened to be
lawsuit, Unique Auto Sales and Campbell (collectively, the
"Automobile Plaintiffs") sought to recoup the loss
from the insurance agency and its agent who procured the
insurance policy - Dunwody Insurance Agency and Thomas
McEachern (collectively, "Insurance Defendants").
The Automobile Plaintiffs alleged that the Insurance
Defendants knew Unique Auto Sales' business model; that
in about 2012, the Insurance Defendants secured an insurance
policy for Unique Auto Sales from Utica National Insurance
Group; that the policy remained in effect at the time of the
claimed loss; that the Insurance Defendants had repeatedly
assured the Automobile Plaintiffs that the coverage provided
by the policy was appropriate for Unique Auto Sales; that the
Automobile Plaintiffs relied on those assurances; that the
insurance policy procured by the Insurance Defendants
provided Unique Auto Sales with virtually no coverage; and
that the Automobile Plaintiffs had consequently suffered a
loss of nearly $230, 000. The Automobile Plaintiffs thus
sought to recover damages from the Insurance Defendants under
theories of negligence and breach of contract.
discovery, Campbell recounted that he had procured the policy
at issue in 2012, and had renewed coverage through 2016. He
admitted that he had read the entirety of neither the initial
policy nor any renewal documentation. He asserted, however,
that the insurance agency and its agent were experts, and so
he relied on the instruction and expertise of McEachern (the
insurance agent) who repeatedly assured him that Unique Auto
Sales was adequately covered.
Insurance Defendants filed a motion for summary judgment,
arguing that Campbell was obligated to read the policy, and
that had he done so, he would have ascertained that the type
of loss claimed here was not covered.
As a general rule, an insurance agent who procures insurance,
but fails to obtain all of the requested coverage, is
insulated from liability if the insured does not read the
policy. This is because an insured has a duty to read and
examine an insurance policy to determine whether it provides
all of the coverage sought. The general rule, however, has
several exceptions, including: [w]hen the agent has held
himself out as an expert and the insured has reasonably
relied on the agent's expertise to identify and procure
the correct amount or type of insurance, unless an
examination of the policy would have made it readily apparent
that the coverage requested was not issued.
(Citations and punctuation omitted; emphasis supplied.)
Cottingham & Butler, Inc. v. Belu, 332 Ga.App.
684, 686-687 ...